In Depth

During a trial for identity deception, a court correctly admitted evidence under Indiana Evidence Rule 404(b) of the defendant's
prior interaction with the victim of his identity theft and previous instances of using the victim's information, the
Indiana Court of Appeals concluded today.

In Andrew G. Prairie v. State of Indiana, No. 29A02-0811-CR-985, Andrew Prairie was arrested and charged with identity
deception as a Class D felony after he used David Hutchinson's personal information for billing at a hospital. Prairie
had outstanding warrants and told police he used a fictitious person's information to avoid being caught; Prairie had
actually been friends with Hutchinson in the past and once stayed at his home. That's how he obtained the needed information
to use Hutchinson's identity.

The state filed a motion under Evid. R. 404(b) to use evidence of Prairie's prior relationship with Hutchinson and the
testimony that Prairie had used Hutchinson's information to get a credit card and ATM card for Hutchinson's bank account.
The trial court granted the motion that the evidence of prior bad acts wasn't too remote and it was probative on the question
of the relationship between the two.

During opening statements, defense counsel said they didn't believe the state could show Prairie had intent to harm or
defraud. The trial judge had considered later not admitting the evidence based on Iqbal v. State, 805 N.E.2d 401 (Ind. Ct.
App. 2004), but because defense counsel put the question of specific intent into question at trial, the judge allowed the
evidence to be admitted. The jury convicted him on the charge.

Prairie argued it was an error to allow the state to introduce that evidence under Evid. R. 404(b). The evidence was admitted
under the intent exception set out in the rule, and is allowed when a defendant affirmatively presents a claim of particular
contrary intent, wrote Judge Ezra Friedlander.

The probative value of the evidence in question outweighs the prejudicial impact of the evidence, the appellate court ruled.
In the instant case, the evidence was introduced to show Prairie didn't intend to avoid arrest but to defraud Hutchinson.
Intent to defraud is an element of the offense of identity deception.

In making his statement to police about using made-up information, Prairie implied to the detective that he didn't think
Hutchinson existed, which is clearly not true, wrote the judge. Hutchinson's testimony about the relationship and prior
identity theft was relevant in that it was probative on the question of Prairie's intent in providing false information
to the hospital for billing purposes.

"Although there is certainly at least a theoretical risk that the jury could conclude under these circumstances that
Prairie was guilty this time because he had done something similar to Hutchinson before, we find this risk is outweighed by
the fact that Hutchinson's testimony makes the existence of the intent element of the crime charged more probable than
it would be without Hutchinson's testimony," wrote Judge Friedlander.